United States v. Powell ( 2021 )

This opinion is subject to administrative correction before final disposition.
Before
GASTON, STEWART, and HOUTZ
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Michael B. POWELL
Machinist’s Mate (Nuclear) First Class (E-6), U.S. Navy
Appellant
No. 201900280
Decided: 16 April 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Ann B. Minami (arraignment)
Kimberly Kelly (trial)
Sentence adjudged 10 July 2019 by a general court-martial convened
at Naval Base Kitsap, Washington, consisting of a military judge
sitting alone. Sentence in the Entry of Judgment: reduction to E-1,
confinement for 42 months, and a bad-conduct discharge. 1
For Appellant:
Lieutenant Commander Erin Alexander, JAGC, USN
1 Pursuant to a plea agreement, the convening authority suspended confinement
in excess of 30 months.
United States v. Powell, NMCCA No. 201900280
Opinion of the Court
For Appellee:
Lieutenant Jennifer Joseph, JAGC, USN
Judge STEWART delivered the opinion of the Court, in which Senior
Judge GASTON and Judge HOUTZ joined.
_________________________
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under NMCCA
Rule of Appellate Procedure 30.2.
_________________________
STEWART, Judge:
Appellant was convicted, pursuant to his pleas, of two specifications of
attempted sexual abuse of a child in violation of Article 80, Uniform Code of
Military Justice [UCMJ], 10 U.S.C. § 880 (2012 & Supp. III 2016), for
communicating indecent language to, and arranging to meet and have oral
sex 2 with, a fictitious individual named “Mackenzie.” 3
He asserts three assignments of error [AOEs]: (1) the military judge erred
in accepting Appellant’s plea of guilty to Specification 1 of the Charge with
respect to lewd messages sent to Mackenzie because she failed to discuss with
him the defense of mistake of fact as to Mackenzie’s age; (2) Appellant is
entitled to sentencing relief for the Government’s failure to timely comply
with the pretrial agreement regarding deferment and waiver of forfeitures
and rate reduction; and (3) Appellant’s trial defense counsel were ineffective
for admitting Defense Exhibit D into evidence. We find no prejudicial error
and affirm.
2 The attempted offenses would have been in violation of Article 120b, UCMJ.
3 All names in this opinion, other than those of Appellant, the judges, and coun-
sel, are pseudonyms.
2
United States v. Powell, NMCCA No. 201900280
Opinion of the Court
I. BACKGROUND
Appellant posted an online ad using a fictitious name—including a photo
of himself in military fatigues—asking “where the action is?” 4 Naval Criminal
Investigative Service [NCIS] undercover agents purporting to be a 13-year-
old, Mackenzie, replied to the ad and engaged in an email conversation with
Appellant. After a little more than a week of exchanging emails, during
which Mackenzie apprised Appellant that she was “almost fourteen” years
old, their conversation became sexual in nature. Appellant provided her his
username for a mobile messaging application known for providing anonymity
to its users, and the conversation shifted to that platform. The conversation
continued to revolve around sexual acts and Appellant’s sexual desires. At
one point, the following exchange took place:
Mackenzie: You probably like girls older than me then.
Appellant: What you thinking?
Mackenzie: That’s what I was thinking.
Appellant: Oh, why?
Mackenzie: Cause I’m 13. My boobs aren’t big.
Appellant: I thought you said you were 16.
Mackenzie: No. I told u.
Appellant: Ok.
Mackenzie: If u don’t like me it ok.
Appellant: I didn’t say that, besides, I haven’t even seen you
yet. 5
Ultimately, Appellant arranged to meet Mackenzie at a fast-food restau-
rant onboard Naval Base Kitsap-Bangor to receive oral sex from her. On the
agreed-upon date, Appellant drove to the restaurant and parked in the
restaurant parking lot after purchasing condoms at the local Navy Exchange
mini-mart. Once he exited his vehicle and started walking toward the
restaurant, he was apprehended by NCIS.
4 Pros. Ex. 2 at 1.
5 Pros. Ex. 2 at 14. Throughout this opinion, the digital communications are
presented as written.
3
United States v. Powell, NMCCA No. 201900280
Opinion of the Court
Pursuant to a pretrial agreement, Appellant pleaded guilty by exceptions
and substitutions to two specifications of attempted sexual abuse of a child,
for communicating indecent language to Mackenzie and then attempting to
meet her for sex. During the providence inquiry, the military judge explained
the defense of mistake of fact as to Mackenzie’s age with respect to each
specification. Appellant affirmed that he understood that defense and the
elements of the charges against him. When asked to explain in his own words
why he believed himself guilty of Specification 1 of the Charge, Appellant
stated, “Your Honor, when we started communicating, she had stated that
she was 13, almost 14, and I continued to talk to her as stated.” 6 Later, when
the military judge asked about the lewd statements he was charged with
communicating to Mackenzie, Appellant responded as follows:
MJ: And in this particular case, you mentioned that
you knew you were speaking with somebody who
was 13 years old, correct?
Appellant: Yes, ma’am.
...
MJ: Okay. And so how does that affect whether [the
statement is] indecent, if at all?
Appellant: Ma’am, because—yes, because she was 13, and
she was a child. Yeah, her—her age does make it
indecent.
MJ: In what way?
Appellant: Because she is young, she’s—she is 13 years old. 7
The military judge accepted Appellant’s pleas of guilty to both specifications.
II. DISCUSSION
A. The Military Judge Properly Accepted Appellant’s Pleas
Appellant asserts the military judge erred in accepting his plea of guilty
to Specification 1 with respect to two of the indecent messages he sent to
Mackenzie. He argues that the military judge failed to advise him of the
6 Rawle at 32.
7 R. at 39.
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United States v. Powell, NMCCA No. 201900280
Opinion of the Court
defense of mistake of fact as to age as to these two messages, and that he
harbored an honest but mistaken belief that Mackenzie was at least 16 years
of age when he made those specific comments in light of his message that he
“thought [she] said [she was] 16.” 8
We review a military judge’s decision to accept a guilty plea for an abuse
of discretion. 9 We apply “the substantial basis test, looking at whether there
is something in the record of trial, with regard to the factual basis or the law
that would raise a substantial question regarding the Appellant’s guilty
plea.” 10
Article 45(a), UCMJ, requires that in a guilty plea case, if an accused
makes an irregular pleading, sets up a matter inconsistent with his pleas, or
enters pleas of guilty improvidently, his pleas of guilty should be rejected. 11
In such circumstances, military judges should ordinarily only accept an
accused’s pleas of guilty if the providence inquiry is reopened, and any
inconsistencies are resolved. 12 A matter may be inconsistent with a plea of
guilty if it raises the possibility of a defense. 13 Thus, where the possibility of a
defense is presented on the record, military judges are expected to conduct
further inquiry directed at the possible defense, or reject an accused’s plea. 14
The “possible defense” standard is not to be confused with the standard to
determine whether a defense “is available or whether members in a contested
case should be given an instruction.” 15 We also must not confuse a “possible
defense,” which would necessitate further inquiry into an accused’s pleas,
8 Pros. Ex. 2 at 14.
9 United States v. Smead, 68 M.J. 44, 65 (C.A.A.F. 2009) (citing United States v.
Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008)).
10 Id.
11 UCMJ, Article 45(a), 10 U.S.C. § 845(a); see also United States v. Zachary, 63
M.J. 438, 444 (C.A.A.F. 2006) (quoting United States v. Outhier, 45 M.J. 325, 331
(C.A.A.F. 1996); see also United States v. Shaw, 64 M.J. 460, 462 (C.A.A.F. 2007)
12 United States v. Phillipe, 63 M.J. 307, 309 (C.A.A.F. 2006).
13 United States v. Hayes, 70 M.J. 454, 458 (C.A.A.F. 2012); see also United States
v. Goodman, 70 M.J. 396, 399-400 (C.A.A.F. 2011) (requiring a mistake of fact
defense to be “reasonably raised” before it can create an inconsistency in a guilty
plea).
14 Id. see also, Phillipe, 63 M.J. at 310.
15 Id. (emphasis in original).
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United States v. Powell, NMCCA No. 201900280
Opinion of the Court
with the “mere possibility of a defense,” which would not. 16 In determining
whether an inconsistency or possible defense necessitating further inquiry
exists, we consider the “full context” of the plea inquiry, including the
stipulation of fact. 17
Here, we find no abuse of discretion in the military judge’s acceptance of
Appellant’s plea, for several reasons. First, while the specific messages
Appellant challenges took place relatively early in his conversation with
Mackenzie after he sent a message stating that he thought Mackenzie had
said she was 16 years old—and before their conversation transitioned to chat
where Mackenzie reiterated her “age”—the messages followed Mackenzie’s
email stating “im almost 14. I come to Silverdale sometimes to see ym [sic]
dad. How long have you been here,” to which Appellant simply responded,
“couple months.” 18
Second, Appellant pleaded guilty acknowledging the truth of a stipulation
of fact wherein he confirmed with respect to Specification 1 that he believed
Mackenzie to be 13 years old “because on December 13, 2018, Mackenzie told
me that she was ‘almost 14’ years-old.” 19 Appellant responded in the negative
when the military judge asked, “Is there anything in the stipulation that you
do not wish to admit is true?” 20
Third, during the providence inquiry conducted by the military judge,
Appellant affirmed that prior to the first lewd message for which he was
charged, he “knew” he was speaking to someone who was 13 years old. He
specifically added, “[w]hen we started communicating, she had stated that
she was 13, almost 14, and I continued to talk to her.” 21 When describing why
his communication to her was indecent, Appellant stated it was because “she
was 13, and she was a child.” 22 With respect to the second communication at
16 Id. (citing Shaw, 64 M.J. at 462).
17 Goodman, 70 M.J. at 399 (citation omitted).
18 Pros. Ex. 2 at 6. We also note that when Appellant later told Mackenzie, “I
thought you said you were 16,” she immediately responded, “No. I told u,” to which he
replied, “Ok.” Pros. Ex. 2 at 14.
19 Pros. Ex. 1 at 1.
20 Rawle 26.
21 Rawle 32 (emphasis added); see also Pros. Ex. 1 at 1.
22 Id.
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Opinion of the Court
issue, Appellant confirmed that he understood the language to be indecent
because “it is not acceptable for an adult male to speak to a 13-year-old about
masturbation or oral sex.” 23 Thus, despite Appellant’s single comment
suggesting he was mistaken as to her age, he clarified on the record multiple
times that he believed Mackenzie was 13 years old for the duration of their
conversation, to include the messages he seeks to have this Court set aside on
appeal.
Finally, Appellant’s suggestion that the military judge failed to inquire
adequately into the defense of mistake of fact as to age is unsupported by the
record. She plainly advised Appellant of the mistake-of-fact-as-to-age defense,
Appellant acknowledged his understanding of it, and the hearing proceeded
without further mention of it as a possible defense. The record as a whole
does not raise the “possibility of a defense” in a way that would require any
more inquiry than that conducted by the military judge, who more than
adequately resolved any potential ambiguity presented by the single message
on which Appellant bases his argument.
B. Appellant Received the Full Benefit of the Bargain of the Pretrial
Agreement and is Not Entitled to Additional Relief
Appellant asserts the Government failed to timely comply with the pre-
trial agreement regarding deferment and waiver of forfeitures and rate
reduction, and therefore seeks sentencing relief. While the interpretation of a
pretrial agreement’s provisions is a question of law we review de novo, the
question of whether the Government complied with a pretrial agreement’s
terms is a mixed question of law and fact. 24
Appellant bears the burden of demonstrating that a significant basis in
law or fact exists to overturn his guilty plea. 25 In the context of a dispute over
execution of the pretrial agreement’s provisions, Appellant must establish
that “a term or condition was material to his decision to plead guilty, that the
Government failed to comply with that term or condition, and therefore, that
his plea was improvident.” 26 In determining materiality, we look to the
agreement itself and the appellant’s understanding of the terms “as reflected
23 Rawle 40–41; see also Pros. Ex. 1 at 1.
24 United States v. Lundy, 63 M.J. 299, 301 (C.A.A.F. 2006) [Lundy II].
25 Id.
26 Id. at 302.
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Opinion of the Court
in the record as a whole.” 27 When an issue of pay is a material term, “a plea
may be rendered improvident where the Government fails to provide
requisite pay.” 28 When the Government fails to comply with a material
provision of a pretrial agreement, we may provide a remedy in the form of
either specific performance, withdrawal of the plea, or alternative relief with
Appellant’s consent. 29
Here, Appellant negotiated a pretrial agreement with the convening
authority in the hope of protecting his family from the financial harm
stemming from any reduction in paygrade. 30 Regarding reductions, the
agreement provided:
Adjudged reductions may be approved as adjudged; however,
any adjudged reduction will be suspended for 6 months from
the date of the convening authority’s action . . . . This Agree-
ment constitutes [Appellant’s] request for, and the convening
authority’s approval of, deferment of that adjudged reduction
which is to be suspended pursuant to the terms of this Agree-
ment and would otherwise become effective under Article
57(a)(1), UCMJ. The period of deferment will run from the date
the adjudged reduction would otherwise become effective until
the date of the convening authority’s action. 31
For automatic reductions, the agreement provided that “automatic reduction
in pay grade will be suspended for six months from the date of convening
authority’s action, at which time, unless sooner vacated, the part of the
27 United States v. Flores, No. 200501199, 2007 CCA LEXIS 73, at *7 (N-M. Ct.
Crim. App. Mar. 15, 2007) (unpublished) (citing Lundy II, 63 M.J. at 301); see also
United States v. Perron, 58 M.J. 78, 85 (C.A.A.F. 2003).
28 United States v. Hatcher, No. 200900572, 2010 CCA LEXIS 396, at *6-7 (N-M.
Ct. Crim. App. Dec. 21, 2010) (unpublished); See also United States v. Smith, 56 M.J.
271, 279 (C.A.A.F. 2002); United States v. Hardcastle, 53 M.J. 299, 302 (C.A.A.F.
2000); United States v. Williams, 53 M.J. 293, 295 (C.A.A.F. 2000).
29 Perron, 58 M.J. at 85-86; United States v. Lundy, 60 M.J. 52, 60-61 (C.A.A.F.
2004).
30 App. Ex. IV; see also R. at 111, 123 (arguing for a sentence that would have the
least impact on Appellant’s children).
31 App. Ex. IV at 2.
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Opinion of the Court
automatic reduction that was suspended will be remitted without further
action.” 32
Based on the leave and earning statements Appellant attached to the
record, it appears Appellant’s pay was reduced to E-1 at some point following
the conclusion of his court-martial in July 2019 and that he remained at E-1
pay until his paygrade of E-6 was reinstated several weeks later. 33 It is
difficult to determine with precision when Appellant’s reduction in paygrade
went into effect and when it was reinstated, as he only provided documenta-
tion substantiating that in August 2019 he was paid as an E-1, and then in
October 2019 he was paid as an E-6, with back-pay for an indeterminate time
period. In any event, Appellant concedes that with back-pay he was made
whole from a financial standpoint by October. 34
Whether it was the result of the adjudged or automatic reduction, Appel-
lant should not have been subjected to reduction in paygrade under the terms
of his pretrial agreement. Were it the case that the adjudged reduction took
effect, this would be contrary to that portion of the pretrial agreement
requiring deferment of the adjudged reduction until the convening authority’s
action. 35 If instead Appellant was subjected to automatic reduction, such
reduction should have only been triggered upon the Entry of Judgment, at
which point it should have been suspended under the agreement. 36 Neverthe-
less, because Appellant was provided back-pay for the time period he received
E-1 pay, the question is whether Appellant has met his burden to establish
that the timing of any reduction in paygrade was “material” to the reduction
provisions of Appellant’s pretrial agreement. 37 If so, we would consider
granting one of the three types of relief contemplated in Perron.
32 Id.
33 We need not go into the details of Appellant’s claim as to forfeitures, since
based on the leave and earning statements Appellant attached to the record, it does
not appear Appellant was ever subjected to forfeitures.
34Appellant Br. at 11 (acknowledging that the Government “caught up” with its
payments).
35 The adjudged reduction would come into effect fourteen-days following sentenc-
ing, and then deferred from that point until the convening authority’s action. UCMJ,
Art. 57(a)(1)(A), 10 U.S.C. § 857(a)(1)(A).
36 UCMJ, Art. 58a(a), 10 U.S.C. § 858a(a).
37 Lundy II, 63 M.J. at 302.
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Opinion of the Court
While the record establishes that Appellant was motivated to plead guilty
in part due to the Government’s assurances that the impact of a conviction on
his family would be minimized, his pretrial agreement and colloquy with the
military judge do not substantiate that timing of performance was material. 38
Appellant’s case is closer to Lundy II than Perron in that Perron involved a
colloquy with the military judge, and a clemency request, that more clearly
established his family’s immediate need for the appellant’s pay, and thus the
materiality of timing. 39 In Lundy II, by contrast, the terms of the pretrial
agreement suggested that the amount of payment was material, but not
necessarily the timing of that payment. 40 The provision at issue in Lundy II
provided that the convening authority would “suspend any and all adjudged
and waive any and all automatic reductions and forfeitures, and pay them to
Appellant’s wife to the full extent of the law.” 41 CAAF interpreted “to the full
extent of the law” to be the pivotal clause of the agreement, and determined
that this language was a “term of art designed to maximize payment, but not
necessarily expedite process.” 42
So too here. Irrespective of which reduction provision in Appellant’s
pretrial agreement triggered the error of which he complains, the language of
these provisions “suggest[ ] emphasis on the amount of payment and not
necessarily on the speed or timing of payment.” 43 The record sheds little
additional light on the materiality of the timing of any reduction. 44 Thus,
while the reduction should not have taken place by virtue of the agreement
and the statute, 45 the record as a whole does not suggest that timing was
38 Perron, 58 M.J. at 85 (looking at the record as a whole to determine materiali-
ty).
39 Id. at 79.
40 Lundy II, 63 M.J. 303.
41 Id. at 302.
Id. at 303 (the parties agreed that “full extent of the law” at the time of Appel-
42
lant’s guilty plea meant “six months” from the convening authority’s action).
43 Id.
R. at 111, 116 (Appellant only broadly argued that any punishment have the
44
least impact possible on his children).
45 Why the reduction was executed is not apparent in the record.
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Opinion of the Court
material to Appellant’s decision to plead guilty, even if it was a relevant
consideration. 46
In any event, the Government specifically performed its duty in providing
back-pay for the brief period in which Appellant was paid as an E-1.
Appellant provides no indication, legal or otherwise, for why he has not been
made whole by the Government’s issuance of back-pay. He provides no
support in the case law, and we find none ourselves, for his position that
because his wife was deprived of his E-6 pay for some period of time, he
should be entitled to a reduction in confinement. 47 Thus, even assuming
Appellant had met his burden to demonstrate that the timing of continued
payment as an E-6 was material to his decision to plead guilty, he has not
demonstrated that a remedy in addition to the Government’s specific
performance is warranted in this case.
C. Ineffective Assistance of Counsel
Appellant asserts his trial defense counsel [TDC] were ineffective for
introducing Defense Exhibit D, a psychological clinical assessment regarding
Appellant’s possible sexual deviancy and recommendation for treatment.
We review claims of ineffective assistance of counsel de novo. 48 Our re-
view uses the two-part test outlined in Strickland v. Washington. 49 “In order
to prevail on a claim of ineffective assistance of counsel, an appellant must
demonstrate both (1) that his counsel’s performance was deficient, and (2)
that this deficiency resulted in prejudice.” 50 Our review “must indulge a
strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” 51 When an ineffective assistance of
46 Lundy II, 63 M.J. at 304 (suggesting that timing may be relevant to a decision
to plead guilty, but not necessarily material).
47 While the record is unclear on the issue, we note that Appellant’s leave and
earnings statements suggest he failed to set up an allotment of pay to his wife, a
requirement placed on him by his pretrial agreement, and a possible cause of any
financial deprivation to his wife.
48 United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009) (citations omitted).
49 466 U.S. 668, 687 (1984)
50United States v. Green, 68 M.J. 360, 361-62 (C.A.A.F. 2010) (citing Strickland,
466 U.S. at 687).
51 Strickland, 466 U.S. at 689.
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Opinion of the Court
counsel claim is premised on TDC deciding what evidence to present as a
tactical decision this Court has held that “the decisions of . . . what evidence
to present [is a] tactical decision [ ] and should not be subjected to the
appellant’s ‘Monday morning quarterbacking.’” 52 With respect to whether the
asserted deficiency resulted in prejudice, an appellant “must show that there
is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” 53
Appellant asserts that TDC was deficient in introducing Defense Exhibit
D because in addition to information that Appellant presented a low risk of
re-offending, it also contained information that
he had been engaging in online sexual chatting since the age of
13; he has an issue with communication with women online
since 2011 that has caused stress in his marriage; he began us-
ing pornography at the age of 13 and purchased a membership
for an “adult friend-finder;” he and others in his unit placed
“phone advertisements” to “generate responses;” he developed a
“sex addiction” and he used the Kik application to “sext” with
other women during his marriage. 54
We disagree with Appellant’s characterization of Defense Exhibit D, which
ignores how the exhibit was presented at sentencing.
As TDC explained to the military judge, the exhibit was offered as the
“complete record of the psychosexual analysis that [the expert] performed on
[Appellant], and what he reported to him in the moment as part of the
entirety of his report.” 55 He further highlighted its purpose as “an expert
evaluation for likelihood of recidivism and rehabilitative potential.” 56 During
his sentencing argument, TDC focused on the report’s conclusions as to
Appellant’s rehabilitative potential and low risk of recidivism:
52 United States v. Mitchell, No. 9801469, 2000 CCA LEXIS 301, at *11 (N-M. Ct.
Crim. App. June 30, 2000) (unpublished) (citation omitted).
53 Strickland, 466 U.S. at 694.
54 Appellant Br. at 13-14.
55 Rawle at 82.
56 Id.
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Opinion of the Court
The evaluation concluded that [Appellant] does not appear to
be a pedophile or sexually attracted to children, and that is
based in large part on the Able evaluation, which is hard to
fool. Rather than being a pedophile, this was poor impulse con-
trol, faulty judgment and a failure to escape the fantasy world
that he had created for himself. 57
What is evident from the record is the introduction of Defense Exhibit D in
its entirety was a strategic decision to deliver a targeted message to the
military judge. Strategic decisions to accept a risk or forgo a potential benefit
are not deficient when the decisions are objectively reasonable. 58
We find that, facing a strong Government sentencing case, TDC’s decision
to offer evidence of Appellant’s low risk of recidivism by offering the entire
psychologist’s report was reasonable. Offering the entire report provided
Appellant an opportunity to demonstrate the challenges he faced that led him
to the misconduct and a willingness to be open with the sentencing authority,
which supported his low risk of recidivism. The evidence Appellant complains
of on appeal could just as easily be seen as mitigating, as Appellant was able
to place before the military judge evidence that he was an individual
struggling with addiction. We have previously tacitly approved a sentencing
strategy based on the accused’s “sickness,” “weakness,” and the “collateral
matter” of his participation in a particular sex-offender treatment program. 59
In evaluating the defense counsel’s decision to fashion her sentencing
argument around collateral matters in that case, we “accord[ed] the highest
levels of deference” to her professional judgment. 60 We reach the same
conclusion here, decline to hold that such a strategy rendered TDC’s
performance deficient, and find it was within the bounds of reasonable
professional assistance.
57 Rawle at 123.
58 United States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012); see also United
States v. Stephenson, 33 M.J. 79, 80 (C.M.A. 1991) (concluding it was not deficient
performance to decline to call character witness at sentencing hearing to avoid
harmful rebuttal evidence).
59 See United States v. Geronimo-Hernandez, No. 201600383, 2018 CCA LEXIS
200, at *4, *11-12 (N-M. Ct. Crim. App. Apr. 28, 2018) (unpublished).
60 Id.
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III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel,
we have determined that the findings and sentence are correct in law and
fact and that no error materially prejudicial to Appellant’s substantial rights
occurred. 61
The findings and sentence are AFFIRMED.
Senior Judge GASTON and Judge HOUTZ concur.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
61 UCMJ, arts. 59, 66, 10 U.S.C. §§ 859, 860.
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